PHOON LEE PILING CO. LTD. AND ANOTHER v. THE HONG KONG HOUSING AUTHORITY

HCA 119/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 119 OF 2001

____________

____________

___________

R U L I N G

___________

1. I am not ruling on the point (see below) at this stage. The point will have to be dealt with, of course, at some stage. I am not ruling on this point. I will require the Plaintiff to carry on with his appeal against the order of Master H C Wong.

2. I should of course explain briefly the reasons for my decision. It seems clear to me that the Master made her order against the Plaintiffs in relation to the strike-out application by looking at the pleading only. In particular, she only looked at the statement of claim to decide whether there was an arguable case on defamation and, for that matter, malicious falsehood against the Defendant.

3. The alleged fraud relates to a document exhibited by one of the deponents who had made an affidavit on behalf of the Defendant in support of its application to strike out. It related to whether there had been short-piling involved in the project in question. The approach of the learned Master did not require her to go into the factual disputes between the parties, one of which involved whether there was indeed any short-piling. The learned Master only looked at the statement of claim and decided that, on the pleaded facts, they did not give the Plaintiff an arguable case based on defamation or malicious falsehood against the Defendant.

4. Now, the approach of the Master, it would seem to me, was a correct approach; and based on what I have heard thus far, that is the approach that I am going to adopt in hearing this appeal from the Plaintiff, i.e. to decide on the Plaintiffs' pleading whether they have an arguable case on the pleaded facts of defamation or malicious falsehood.

5. Now, of course, in this sort of application, i.e. a strike-out application, the relief sought by the Defendant is a discretionary one, and if the Defendant relies on a knowingly false affidavit in support of its application for a strike-out, then even if that affidavit is not necessary for the application itself, the court may, in the exercise of its discretion, take that into account and refuse to grant the discretionary relief of strike-out.

6. So I am not saying, at this stage, that if any fraudulent or knowingly false affidavit had been put forward by the Defendant in support of its application, it should not be taken into account at all. I am far from saying that.

7. On the other hand, I am also not saying that once the Defendant has been shown to have put in a fraudulent or false affidavit in support of its application, its application must fail. As I say, everything lies with the discretion of the court, which cannot be exercised by the court without hearing the parties in full first, both in relation to the alleged fraud and in relation to the merits of the application.

8. That is why, at this stage, before the Plaintiff has even opened on the substantive merits of the appeal, I do not find it appropriate to make any ruling on whether the alleged fraud should automatically prevent the Defendant from obtaining a strike-out order. That is why I ruled that I am not making a ruling at this stage and I require the Plaintiffs to carry on with their appeal.